Appellate Practice

BigLaw partner calls solicitor general’s brief 'a hot mess' in SCOTUS filing; was it unseemly?

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Twitter critics were quick to scold a partner at Paul, Weiss, Rifkind, Wharton & Garrison after he called a brief by U.S. Solicitor General Elizabeth Prelogar “a hot mess” in a U.S. Supreme Court filing.

The partner, Kannon K. Shanmugam, was criticized for the tone of his supplemental brief. Some critics questioned whether Shanmugam would have used the “hot mess” phrase if the solicitor general had been a man. Some thought that the brief was too snarky for a case arising from a fatal cargo plane crash.

“The entire brief is written like a tweet,” one Twitter commenter complained.

Law360 and Above the Law had coverage of the controversy.

In his brief, Shanmugam emphasized a slow turnaround time by the solicitor general and criticized her arguments.

“But wait,” Shanmugam wrote. “Nearly one year (!) after the court invited her views, the solicitor general has delivered what can only be described as a hot mess of a brief.”

Shanmugam also accused the government of contradicting its previous position on a federal preemption test.

“Oddly, the government never even mentions that test in its brief here. (Is it still the government’s test? Who knows?),” Shanmugam wrote.

Paul Weiss defended the brief and the “hot mess” phrase in a statement to Law360.

“In this case, the term was used to describe a brief that the government took an unusually long time to file, that failed to state the government’s preferred legal standard, and that appeared to change positions from previous administrations without acknowledging that fact,” the statement said. “This is a commonly used phrase, deployed previously by many courts, as well as a diverse array of attorneys.”

Law360 spoke with experts for their take on the brief and whether the word choice was unusual.

It turns out that at least two federal appeals court judges have used the same wording, as has another Supreme Court litigator—Lisa Blatt of Williams & Connolly, who used the term in a reply brief.

One federal appeals judge referenced “a procedural hot mess,” and another proclaimed that the Supreme Court’s establishment clause jurisprudence “is, to use a technical legal term of art, a hot mess.”

Adam Winkler, a professor at the University of California at Los Angeles School of Law, told Law360 that the kind of language used by Shanmugam is rare—but not unprecedented—in a Supreme Court brief.

What is surprising, Winkler said, is that the word is directed at the solicitor general.

“In the Supreme Court, advocates are instructed not to personalize opinions, not to make ad hominem attacks, and there’s in general a very high standard that’s expected of people when referring to the opposing side,” Winkler told Law360.

Shanmugam did not immediately reply to the ABA Journal’s email and voicemail requests for comment.

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